loses its lead after a long environmental battle. plus the conversation with newly elected east bay congressman eric swalwell. he'll be the youngest after defeating incumbent frank stark. coming up next. good evening. i'm scott shaffer. welcome to this week in northern california. we'll hear from elect eric cal

sw -- swalwell. michael montgomery, reporter for kqed and center for investigative reporting, and moore, professor of law. the u.s. supreme court convened today behind closed doors discussing whether or not to review a lower court ruling striking down california's proposition 8. their highly anticipated decision could come monday. as you well know, the supreme court gets seven to eight thousand requests for cases to be reviewed. how do they decide? they only pick 80 or so a year. what is the criteria and why would prop 8 be an important one to look at? >> it's how legal the precedent is and how national the question is, how many people it affects, and relatedly, how much lower courts are struggling over that and related questions. so in the prop 8 case, it's true the prop 8 is a california-specific measure, and it's also true that a ninth

circuit ruling tried to make its ruling non-specific. california is such an important state and it occurs in dozens of other states and that's why it might have some appeal for the supreme court. >> as you said, the ninth circuit narrowed it down, but when the court gets it, could they broaden it back up and make it a national ruling? >> indeed, they could. as i might expect, they might have some problems with the ninth circuit of california's specific reasoning and then they might feel they have to take on the fundamental question of whether any state under any circumstances can deny the right of same-sex couples to marry, which is the big, big question that covers the whole country. >> doma covers the whole country and federal law. how do the two things interact with each other. >> they have almost a dozen cases involving same-sex marriage before them right now. >> also define doma, if you

would. >> the defensive marriage act passed in 1996 which says for federal tax and other federal purposes, marriage shall be defined only between a man and a woman. so a couple of different federal court of appeals in the second circuit and the first circuit have struck down that aspect of doma, saying that the federal government has to treat same-sex married couples from those states that recognize same-sex marriage as married for federal purposes. so i think a lot of people properly speculate that the supreme court will have to take at least one of these doma cases, because when lower courts are struck down in aederal statute, that's a big deal, and we have to get a resolution of that. whether the preme court says at the same time it's going to go ahead and take the prop 8 case alongside or whether it will take a doma case and sit on the prop 8 case for some periods of months and then resolve the doma case and see how it feels about prop 8 after that is a more difficult question.

>> certainly the court hasn't wanted to go too far ahead of what they see as a national consens consensus, but it's safer for them to take a doma case as opposed to a prop 8 case? >> the legal question presented by the doma cases, whether the federal government has to follow what every state does when defining marriage, is in some sense narrower than the big question of whether states have to recognize same-sex marriage in the first place. but when you really look carefully at the arguments the federal government is making about why it declines to recognize same-sex marriage in the states that have it, at the end of the day, the doma cases, when it gets resolved, will have a fair amount to say about the broader issue. they're speaking about specific legal questions and you may want to proceed incrementally, but all these issues are really tightly related so even if the supreme court doesn't take the prop 8 case straight away, the doma case may have priority.

>> which case, if it took it on, would have the bigger impact, to perhaps simplify what you just said? >> the doma cases affect people in all the states that have recognized same-sex marriage, massachusetts, new york, et cetera. the prop 8 case affects people only in california. so if you add up the people in those other eight or nine states -- i'm not sure if that's more than california -- probably, because new york is one of them. if they were to take the prop 8 case, and as scott mentioned earlier, if they were to rule on the big question of whether there is a right to same-sex marriage and struck prop 8 down on the same broad grounds, not that the ninth circuit did but district judge vaughn walker did here in san francisco, that would be the biggest ruling of all. that would have the biggest implication of all. >> because then you would have same-sex marriage in mississippi. it seems like the least likely place to have it, but then it would be a national rule. >> the court may not be ready to

take that step against a backdrop where we have nine or ten states that have recognized same-sex marriage but that still comprise a pretty small geographic and even numerical minority. and you may not be able to count california as a true same-sex marriage state because same-sex marriage has come about in california not by virtue of the voters or legislature, but as a result of the federal court. >> there are three months virtually for the first time where voters approved same-sex marriage, so the political, the cultural if not the legal landscape have changed a lot in the past couple years. how does that affect the supreme court? how do they look at all that? >> various justices have made clear that in deciding whether there is a national right that is protected in the name of the constitution, the 14th amendment, depends in part on kind of how deeply rooted the claim is in our nation's history and tradition. it used to be that the court focused on history and tradition kind of from long ago, but in

one of the most relevant cases, a case from texas, justice kennedy, and this was a case called lawrence versus texas that involved a criminalization of same-sex activity, justice county said the tradition and history that matters is the recent history and tradition. now, three weeks is super recent, but if you have another three, four or five years like the election in 2012, that could really change the landscape. >> of course, kennedy always has the key vote, so they'll be looking carefully. >> it's hard to see if it is declared nationally if he is not one of the justices saying that. >> thank you. courts have been around for many, many years, in fact, this month they voted to approve the three strikes law, and already a couple cases are out of prison. how does that work? >> a few of those cases were in the works prior to the voting on prop 36.

a couple of the voters actually supported the petition for sentence reduction, and once the judge approved that, the sentence reduction was beneath the amount of time they served, so both those men are out of prison, and the criteria that was established in their cases is pretty much in line with proposition 36, which is that their third strike was non-violent, non-serious, and the d.a. accepted the notion that they didn't pose a threat to public safety. >> now, i know you recently worked on a documentary looking o at three strikes, and you met some of the three strikers. we'll meet some of those men briefly and then we'll come back and talk after i play it. >> since america became tough on crime policies, its prison population has nearly doubled. today the u.s. has more than 140,000 people serving life sentences. one of them is forrest lee jones, a third striker doing 25 years to life. >> my third strike is what they

call a first-degree burglary of an unoccupied dwelling. that's entering an unoccupied dwelling with the intent to commit larceny. i went inside an apartment and stole a vcr. >> at san quentin prison near san francisco, george leads a group called hope for strikers. most men here say their third strikes weren't violent. >> my name is eddie griffin and i got 270 years to life for possession of cocaine. >> my third strike is burglary of an unoccupied dwelling. it was my first relapse after being clean and sober for almost 10 years. >> so, michael, are those three men typical of the three strikers who were there, and what's the process for deciding who gets out under prop 36? >> well, there is about 9,000 people behind bars serving life terms under the three strikes law, the original three strikes law. of those the department of corrections estimates just under

3,000 might be eligible for resentencing under this new law. and, you know, there is questions about whether all those people will get resentenced and whether they'll actually get released. the process is that an inmate has to petition the court, the county where he was sentenced, or she, and if it's determined that he is eligible, that he meets the criteria, then he will be resentenced and that will entail a doubling of what would have been the original sentence without the three strikes enhancement. however, if the local district attorney wants to challenge that, he or she can on the grounds that the inmate might pose a risk to public safety, an unreasonable risk based on prior offenses, based on time behind bars, perhaps incidents in prison. >> are there any timelines prescribed whether the sentencing has to take place or whether the local d.a. objects or doesn't? >> no, and i think that's one of the things that has to be hashed

out in terms of how this process works. courts are overburdened as it is. we don't know exactly how long some of these will take. the inmates have to file their petitions within two years. >> two years within the enactment. >> exactly. exactly. >> are there kind of procedures to decide -- for example, the d.a. objects, then who bears the burden of proving that this guy or woman should not be released, and by what standard are we deciding that question? >> and is it enough if the d.a. says no? is that the end of it? >> no, there will be an evidenciary hearing if it's challenged. this is assuming the inmate is eligible, then there will be a hearing. but the burden of proof is essentially on the prosecution. but who is going to determine the criteria for the burden of proof? >> and what element might be admissible to prove dang

dangerousness? >> that inmate might have had a string of violent crimes that are violent but they're still eligible. >> we've heard a lot about california's overcrowding problem, and people sleeping in gymnasiums. it sounds like even if people got out under this, it wouldn't even help that problem. >> it would help a little bit. the department of corrections is down to about 6 to 7,000, or will be, above the population cap ordered by the courts. so 2,000 out? that's going to help them get there. it won't get them the whole way. >> michael, thank you very much. interior secretary ken salazar announced thursday that the east bay oyster company will lose its lease. it comes after a long battle whether the area should be restored to wilderness. there was a very high-profile

visit recently from sal azar to the bay area. how did that work its way to the top of the food chain, if you will? >> it seems odd, it's just one oyster farm. it had been operating there with special permission, so a 40-year lease that actually expired today. and what happened was the owner, kevin lundy, bought it in 2004, and he was hoping to get the parks service to extend his lease. it really became a battle. you had feinstein saying there are already these kinds of farms. and the area was slated to be destroyed already. >> how much environmental damage can an oyster farm do, and what did the science say about the damage that they were doing? >> that's what's interesting here. the science was the most political part of this. so the national parks service

did an impact study. they said, well, we think that they do damage to the local habitat and they are disturbing harbor seals in the area, and that became very political. you have people saying they didn't do a fair job of that, and it was actually reviewed by a department of science who initially got the data, so you can see it became a debate. >> what's this going to mean for people who like to go up there and buy oysters? they're going to close soon? >> they have 90 days. there are still oyster farms in point rays, but this happened to be in an area designated as potential wilderness, and that was kind of the real problem here. it had been slated as potential wilderness as the highest level of protection that the federal government can give to a place. >> i think they produced 40% of the oysters in california, or they come from there? what is it about that particular

location that makes them so productive, and hog island, which is up the road, can't they make up the difference? >> that's their number, 40%, but it is part of the bay area's landscape and they love the local oyster, so you can see there was a lot of opposition to this. it really has to do with individual leases, seeo each oyster farm has a particular spot they lease from the state or federal government. this happened to be in an area that was contested and they knew that going in. >> does this system have implications for other ranches, businesses or uses for federal lands? i could see people saying those have environmental impact as well. >> there are a number of dairies and ranches in the area. what salazar did when he made this decision, we're going to save it now, we're going to give them an option for a 20-year lease now instead of a 10-year lease. a lot of people think it was a signal to the ranches saying, we

know we've done this, but it's going to be okay. >> i think salazar implied that this was not sustainable, that the oyster farm was not sustainable. what does that mean and why is it not sustainable? >> what's interesting is there was a lot of debateover t over environmental impact? when there is no commercial operation, it becomes the most protected area it can be, so basically what he ruled on was he wanted to see this place pre protected and he kind of left the environmental damage question alone. >> so if it had been able to demonstrate little or no environmental impact, he still would have lost because this is a philosophical question of how wildlife areas should be? >> i think he was saying this is sustainable, we're part of the landscape here. i think he was hoping he could make a case and now he's devastated. >> and that would indicate dairy farms hadn't been located at that spot? >> those ranches and dairy farms

aren't in potential wilderness areas so they don't have quite the same problem. >> so now they're going to restore it. what is it about that location that's really unique? >> for the people that really advocated to get this oyster farm out, it's a beautiful landscape, nobody is debating that. i think it's just a question of what people want to see this place be, right? is it a place where we see commercial operations, orm is i a place where it's completely protected, we don't see development or anything like that. >> and their lease is up today. >> today. >> what happens to them? do they just move or go out of business? i think they have oysters still in the water, don't they? >> they have 90 days to get their equipment out. lundy says they're not sure. they're looking at their leasing options, so it kind of remains to be seen. >> do they do anything for the dislocated employees? >> about 30 employees. that was something both sides said, no mat r what happened, they did want to see some job training happening for those

employees. >> just quickly, kevin lunny, a character. he seems like he's been in the news a lot. is there something interesting about him? obviously well connected politically. >> and he has a ranch as well, so he's still there. i think he was hoping the debate would be a public debate, that people would say we love our local oysters and it became a huge political football. >> and that football came from washington, d.c., and these days most of congress is focused on the fiscal cliff. but for some classes, it's been orientation time. that's when new senators learn their way around the capitol. among them is 32-year-old eric swalwell, an alameda county assistant d.a., he defended a fellow democrat in the district stretching from hayward to dublin. i spoke to swalwell earlier this evening from capitol hill.

>> congressman eric swalwell, thanks for joining us. >> happy to be here. >> you've been to orientation for a couple weeks. what have you learned? >> this is the end of the second week of orientation. i was here right after the election. now we know where our office is going to be, we've hired staff and i've learned how the house floor proceedings worked, you know, how we can best represent the people in the 15th congressional district. we have a lot of ideas i learned in the campaign, and now we know where to take those ideas, how to make them go through the legislative process and get them on the floor, so hopefully my colleagues and i can work together to help the folks who sent me here. >> you're not a stranger to the capitol. you were an intern for former congresswoman ellen ta usc her. what's it like to go back as congressman elect? >> that's right, i was congresswoman's toucher's intern. i would open the mail. back then it was a wide-i'd

experience for me to be in the capitol. the first night i was here, the senate minority took us around on a tour, and i recognized many of the locations because i had given the same tour brchefore. but then when he took me on the house floor, that's when i realized, it was real, i was here, and called and am ready to serve. >> when you ran against pete stark, the entire line from nancy pelosi on down, supported you. >> i've been very impressed to how many have reached out and supported me, to get our office off the ground, to send over resumes of people they thought would be good for our staff. i want to work together because the issues of the 15th congressional district are very similar to the congressional districts throughout the bay area, and we have jobs, transportation, housing, our seniors, they all have the same issues in the bay area, and i've actually worked very closely

with my colleagues already about what we're going to do together in the 113th congress to help the folks back at home. >> i wonder if you feel if because they didn't support you that you have a measure of independence that perhaps you wouldn't have had if you had run with their support and they had helped you raise money and that kind of thing. >> we did arrive here on our own. it was a very grassroots local campaign supported by local volunteers and elected officials. but the campaign is over and now folks want us to come back here and work together, not just with my colleagues in the bay area but with folks across the aisle. that's what i plan to do. i do plan to keep that independent streak with me knowing that i do have to work with others, compromise when necessary, but the principles of growing our economy and making sure that local made in america jobs are going to be coming to our district, i think we're ready to do that. >> you know, the person you defeated, pete stark, was somewhat erratic in the campaign, and i'm wondering, you

know, how your relationship with him is now. has he talked with you since you've been back there, or has he pretty much moved on and have you moved on as well? >> you know, we reached out and attempted to contact him but did not have any success, and he has not called us, but that's okay. i know our offices are communicating to each other through various staff members because we want to be ready on day one. because there are so many constituent services that will need to be provided, so our office is working with his office to make sure it's a seamless handoff and the voters won't know the difference in what the casework is when we start on january 30 and we'll be ready. >> what about the issues? you're a democrat, he's a democrat, a very liberal democrat. how do you find yourself different from him not just in terms of demeanor or behavior but on the issues. >> the lawrence laboratory, one of the largest employers in the district, he and i differed greatly on that. he was not a supporter and i recognize that the work they do there on our energy security and

also to make sure that we keep our country safe is very important. they employ so many employees, but having a member of congress who will invest in them so that we can take those green energy jobs, the technology they work on, to make us more energy independent and rely less on foreign sources of oil, well, i want to transfer those technologies and innovation out to the private sector so we can grow our local economy and also make our earth a little bit healthier. >> what about something like the high speed rail? transportation, of course, is a big issue for your district. where do you stand on that, and in general, transportation, what difference do you want to make there while you're back there in congress? >> i am seeking a spot on the transportation and infrastructure committee. there is no member in the bay area today that sits on that committee. of course, as you know, just recently the california legislature and governor have signed a bill that would provide billions in funding for the high speed rail, so i want to make sure there is a federal partner and an advocate in congress that

supports that. >> eric, we're getting to the end, but you're replacing someone with 40 years of experience. the house has seniority. you have no seniority at all. how are you going to develop clout in a short period of time so your constituents are well represented? >> the house being without history any more, it requires people willing to put in the work and make the case for their district. so the seniority system is starting to no longer be in place because of earmarks being gone. i know i'll roll up my sleeves and work hard to deliver local transportation projects, make sure we have policies that help our local economy, but the work that i've done in the first few weeks here, reaching out across the aisle to those 80 or some-odd members of congress who will be new just like me, i think it's those early partnerships during these formative times as we start to learn how the congress works, that's going to pay dividends down the road. so i can go to a member across the aisle, and because of the

bond we formed in this opening orientation part of our service, i think that will serve the people in the 15th congressional district very well. >> congressman elect, save travels to you. >> thank you. please have me back. >> you bet. thank you so much. have a great weekend. and you can visit kqed/thisweek to subscribe to the newsletter and podcast. i'm scott shore. thank you so much for watching. good night.

gwen: are we really heading for a fiscal cliff? and is the senate prepared to reject the presidential nomination before it's even made? welcome to post-election politics tonight on "washington week." >> i've been keeping my own naughty and nice list for washington. gwen: for the democratic white house, republicans and congress are the naughty ones. house, republicans and congress are the naughty ones. >> no